U.S. v. Rogers

• Decision Date: 12 August 1992
• Docket Number: No. 1550,D,1550
• Parties: UNITED STATES of America, Appellee, v. Andre ROGERS, Defendant-Appellant. ocket 92-1066.
• Court: U.S. Court of Appeals — Second Circuit

Page 489

972 F.2d 489

UNITED STATES of America, Appellee, v. Andre ROGERS, Defendant-Appellant.

No. 1550, Docket 92-1066.

United States Court of Appeals, Second Circuit.

Argued May 22, 1992.

Decided Aug. 12, 1992.

Henriette D. Hoffman, New York City (The Legal Aid Soc., of counsel), for defendant-appellant.

Julie E. Katzman, Asst. U.S. Atty., Eastern District of New York (Susan Corkery, Asst. U.S. Atty., Eastern District of New York and Andrew J. Maloney, U.S. Atty., Eastern District of New York, of counsel), for appellee.

Before: PRATT and ALTIMARI, Circuit Judges, and KELLEHER, District Judge. ^*

ALTIMARI, Circuit Judge:

Defendant-appellant Andre Rogers appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge ), following his plea of guilty to bank robbery, in violation of 18 U.S.C. § 2113(a). On appeal, Rogers challenges only his sentence, contending that the district court improperly refused to consider his request for a downward departure based on Rogers's extraordinary acceptance of responsibility.

For the reasons set forth below, we vacate the judgment of the district court and remand for re-sentencing.

BACKGROUND

On September 21, 1991, Andre Rogers entered a Chase Manhattan Bank in Queens and demanded that a bank employee give him $1,000. Rogers, who was high on cocaine, told the employee, "I'm a crack addict, you don't want to get hurt." The employee went with Rogers to a teller window and asked another employee for the money, which she then gave to Rogers. Fearing that he was under police surveillance, Rogers forced the bank employee to accompany him outside, then fled the scene.

The next day, after the effects of the crack had worn off, Rogers voluntarily surrendered to the police and confessed to the bank robbery. He explained to authorities that he had surrendered because his previous attempts at drug rehabilitation had failed and that he knew he needed help--which he hoped he would get in prison. Rogers subsequently pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a) in the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge ).

On November 22, 1991, Rogers wrote to the probation officer preparing his pre-sentence report and requested a downward departure for his surrender and confession one day after his commission of the crime. The probation department rejected Rogers's request for departure. Because Rogers had prior felony convictions for violent offenses, his pre-sentence report recommended that he be treated as a career offender, thereby resulting in an offense level of 32 and a criminal history category of VI. The pre-sentence report accorded Rogers a standard two-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a).

On January 10, 1992, Rogers wrote a letter to the court reiterating his request for a downward departure based on his actions in surrendering and confessing to the police. At sentencing on January 17, 1992, the court entertained argument on Rogers's request but denied the downward departure, explaining:

Mr. Rogers, you are standing here and you are part of what is an everyday tragedy. You are a tragedy because you are a casualty of a terrible drug epidemic. You say to yourself that "I am not a criminal," but if you look at your record, you have three prior convictions for serious violent crimes, and that is sad. It's also a tragedy that you are being sentenced pursuant to the sentencing guidelines. And the sentencing guidelines mandates that you be sentenced in accordance with a certain formula, and although it gives the Court some discretion, it leaves very little discretion for the Court.

I think that I would be persuaded by your pleas and the eloquent pleas of your counsel if you did not have this particular record, and I think that you should get [credit] for turning yourself in, and you are getting credit for turning yourself in.

As you know, this matter falls within the sentencing guideline and you could be sentenced to anywhere between 168 months, which is 14 years and 210 months, which is more time than that.

The court sentenced Rogers to 168 months imprisonment to be followed by three years supervised release and a mandatory special assessment of $50. After pronouncing sentence the court stated:

You are a career offender and I think 168 months is warranted, since you must be sentenced under the sentencing guidelines....

You made a mistake, you're being sentenced. You might think its harsh, maybe it is harsh, but I think it is adequate.

Rogers now appeals.

DISCUSSION

On appeal, Rogers contends that the district court erred in refusing to grant a downward departure for his voluntary surrender and confession to his crime. A sentencing court may impose a sentence outside the range established by the applicable guideline if the court finds "that there exists an aggravating or mitigating circumstance Whether the existence of certain factors warrants departure is a legal question which we review de novo. See United States v. Mickens, 926 F.2d 1323, 1332 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 940, 117 L.Ed.2d 111 (1992); United States v. Joyner, 924 F.2d 454, 459 (2d Cir.1991). However, a district court's refusal to grant a downward departure is not reviewable unless it was made under the mistaken conclusion that, as a matter of law, the court did not have the authority to depart. See United States v. Ritchey, 949 F.2d 61, 63 (2d Cir.1991); United States v. Richardson, 923 F.2d 13, 15 (2d Cir.1991).

                of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines."  18 U.S.C. § 3553(b) (1988).   The Sentencing Guidelines themselves list several factors which may constitute a basis for departure.   See U.S.S.G. §§ 5K2.1, p.s.-5K2.16, p.s.   This list is not, however, exhaustive, and leaves "the application of other factors to the discretion of the sentencing judge."  United States v. Lara, 905 F.2d 599, 602 (2d Cir.1990);  see also U.S.S.G. § 5K2.0
                

The issues presented therefore, are: (1) whether Rogers's voluntary surrender and confession one day after the bank robbery constitute mitigating factors not considered by the Sentencing Guidelines; and, if so: (2) whether the district court denied Rogers's motion for a downward departure under the mistaken impression that it lacked the authority to depart.

I. The Existence of Mitigating Factors

Rogers points to several factors present in his case which he claims warrant a downward departure below the two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. These are: (1) his surrender one day after committing the robbery; (2) his full confession and cooperation with law enforcement authorities; (3) his acknowledgment that the crime was the result of a crack addiction for which he unsuccessfully had sought help; and, (4) his acknowledgment that he should go to prison and attempt rehabilitation to salvage the remainder of his life. Rogers contends that these factors warrant a downward departure for his "extraordinary acceptance of responsibility" which this Court indicated may provide an appropriate basis of departure in Mickens, 926 F.2d at 1332-33. In addition, Rogers argues that the Guidelines themselves contemplate the appropriateness of such a departure in the analogous context of a defendant who voluntarily discloses an offense which law enforcement authorities might not otherwise have discovered. See U.S.S.G. § 5K2.16, p.s.

In contrast, the government contends that because Rogers is a career offender, neither "extraordinary acceptance of responsibility" under Mickens, nor "voluntary disclosure of the offense," is available as a basis of departure. Specifically, the government argues that prior to a November 1989 amendment to the Guidelines, career offenders were held to be ineligible for the standard two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. From this, the government reasons that had the Sentencing Commission wished to make career offenders eligible for a departure such as this, they would have so provided when they amended the career offender section to include adjustments under § 3E1.1.

At issue is the appropriate scope of a sentencing court's power to depart from an otherwise applicable Guidelines range. We therefore begin by examining the nature of this power.

A district court's authority to depart from the Sentencing Guidelines is statutory and is grounded in the proposition that the Guidelines do not adequately consider a certain aggravating or mitigating factor in assessing a defendant's sentencing range. See 18 U.S.C. § 3553(b) (1988); see also Williams v. United States, --- U.S. ----, 112 S.Ct. 1112, 1118, 117 L.Ed.2d 341 (1992). The Guidelines themselves recognize that a "sentencing system tailored to fit every conceivable wrinkle of each case would quickly become unworkable and seriously compromise the certainty of punishment and its deterrent effect." U.S.S.G.

                Ch. 1., Pt. A, intro.   In recognition of the necessary limitations of the Guidelines framework and of a sentencing court's statutory authority to depart from the prescribed formula, the Sentencing Commission describes the Guidelines as "carving out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes."  Id.  The Commission explains that "[w]hen a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted."  Id
                

Viewed as a whole, the authority to depart provides a "sensible flexibility" to insure that atypical cases are not shoe-horned into a Guidelines range that is formulated only for typical cases. See, e.g., Lara, 905...